Aggrieved by the judgment and final
order dated 30-09-2003 of the High Court of Bombay at Goa whereby the
accused persons/respondents, namely, Sanjay Thakran (respondent no.
1/A-1) and his wife Anjali Thakran (respondent no. 2/A-2) were acquitted
of the offences charged under Sections 120-B, 364, 302 and 392 read with
Section 34 of the Indian Penal Code, 1860, these criminal appeals have
been preferred by the State of Goa and father of one of the deceased
persons. Earlier, by the judgment delivered on 09-01-2002, the Court of
IInd Additional Sessions Judge, Panaji has acquitted both the accused
persons of all the abovementioned charges levelled against them.

The relevant facts, as per the
evidence adduced and the First
Information Report, are that on 26-02-1999, the deceased couple,
namely, Vikas Nanda (D-1, age 26 years) and Kavita Nanda @ Priya
Nanda (D-2, age 23 years), arrived in Goa from Mumbai for their
honeymoon and stayed in Hotel Seema at Ribandar. On 27-02-1999,
the deceased couple went for sight-seeing at Ozran, Vagator with
P.W.13-Vincent, who was the car driver and had also taken them for
the sight-seeing trip a day earlier as well. At about 2.30 p.m., D-1
told P.W.-13 that they had met some friends from Delhi and hence
P.W.-13 returned from there. P.W.30-Suhasini Govekar, who
operated a shack at Anjuna beach with her husband, mentioned that
on 27-02-1999, the accused couple and their children came to her
place in between 1.00-2.00 p.m. and then went to take bath. When
they returned back, the deceased couple accompanied them. The
accused couple was running a bar and the restaurant Iguana Miraj
and hotel Lalita Beach Resort in Goa. P.W.11-Dinesh Adhikari, who
was servant of the respondents, saw the deceased couple at
respondents' hotel 2 or 3 days preceding the festival of Holi in the
year 1999 at approximately 6.00-7.00 p.m. According to this
prosecution witness, A-1-Sanjay Thakran, D-1-Vikas Nanda and
P.W.14-Calvert were sitting outside the hotel and A-2-Anjali Thakran
was sitting with D-2-Priya Nanda inside a room in the hotel. He saw
A-1-Sanjay Thakran and D-1-Vikas Nanda walking towards the beach
sometime after 9.00-9.30 p.m. and that was the last time when D-1
was seen alive. After sometime P.W.11 saw A-1-Sanjay Thakran,
A-2-Anjali Thakran and D-2-Priya Nanda as they were walking away
from Iguana Miraj. Another prosecution witness, P.W.14-Calvert
Gonsalves also saw the deceased couple at the hotel of the accused
couple. As per P.W.6-Amit Banerjee, who was working as a
receptionist at Hotel Seema, D-2-Priya Nanda returned to Hotel
Seema without D-1 and along with A-1-Sanjay Thakran at about
11.30 p.m. She asked for the key of their room from P.W. 6. A-1-Sanjay Thakran helped her to carry the luggage from the Hotel room
as she checked out about 11.40 p.m. A-2 did not come to the hotel
and remained seated in the white colour Maruti Car that had a Delhi
registration number on it. D-2-Priya Nanda, A-1-Sanjay Thakran and
A-2-Anjali Thakran went away in that car and thus, D-2 was also last
seen alive in the company of the accused couple.

On 28-02-1999, P.W.2-Charles Mills lodged a report at Anjuna
Police Station that a dead body of unknown female foreigner (later
identified as D-2) was found at the Vagator Beach. According to this
witness, who was staying near the beach, at around 7.30 a.m., he
was told by someone that a female body was floating in the seawater.
The deceased was wearing a blue skirt and a top. On the same day,
P.W.17-Fausto Afonso lodged report with Colva Police Station that a
dead body of unknown male foreigner (later identified as D-1) was
found at about 00.30 hours at the Benaulim Beach. The distance
between the Vagator Beach and Benaulim Beach is around 60
kilometers.

As the deceased couple neither returned to Delhi as expected
by 01-03-1999 nor contacted P.W.33-Subhash Nanda i.e., father of
D-1, he called up P.W.4-A.C. Duggal to inquire about them.
Accordingly, P.W. 4-A.C. Duggal, who was uncle of D-1 and lived in
Mumbai, called up N. Murari, who was posted in Goa and worked in
the Union Bank of India with P.W.-4, to know about their whereabouts
on 01-03-1999. N. Murari told P.W.-4 that they had already checked
out of the Hotel Seema. Since the deceased couple did not reach
Mumbai as stipulated by P.W.-4 on 02-03-1999, he again called up
N. Murari. On 03-03-1999 at about 7.15 p.m., N. Murari informed
P.W.-4 that a dead body of male person with similar description to
that of Vikas had been found and asked him to come to Goa.
P.W.-4 rushed to Goa and identified the dead body of D-1-Vikas
Nanda on 04-03-1999. On the same day, N. Murari lodged a missing
report [Exhibit No. 20] at Old Goa Police Station. After identifying the
body of D-1-Vikas Nanda at morgue, P.W.-4 went to Seema Guest
House and made inquiries about the couple. The dead body of D-2
was also identified on 05-03-1999. P.W.-4 lodged a complaint
[Exhibit No.21] on 05-03-1999 at Anjuna Police Station with P.W. 38-
Sub-Inspector Sandesh Chodankar. According to this complaint, on
04-03-1999, P.W.-4 was informed by Hotel Manager that D-2
checked out from hotel on 27-03-1999 at about 11.40 p.m. and
another person having short built, bald from front and having fair
complexion accompanied her. The complainant believed that since
the dead bodies of the couple had been found at places nearly 60
kilometers away from each other, the newly married couple must
have been lured by some disgruntled mischievous element, who had
killed them for their ornaments, as all the gold ornaments of the
deceased couple were found missing.

and it was opined that these were caused by blunt weapons. Due to
the fact that the doctor, who initially conducted postmortem on body
of D-1-Vikas Nanda on 01-03-1999, had not preserved any viscera or
material, on 05-03-1999 a second postmortem [Exhibit No. 95] was
conducted by P.W.32-Dr. E.J. Rodrigues, which exposed the
following ante-mortem injuries:

1. Abrasion reddish and fresh of 6 x 4.5 cms. Present on upper
outer part on right side face between outer orbital margin, 2
cms. in front of right tragus of ear and extending on outer part
of right cheek bone. No bruising underneath.

2. Abrasion reddish and fresh of 2.5 x 1 cms. Placed vertically on
the ridge of nose. No bruising underneath. No injuries to alae of
nose.

3. Abrasion reddish and fresh of 5 x 3 cms. on left side upper part
of face 2 cms. in front of left tragus of ear extending upto outer
orbital margin and also on outer part of left cheek bone. No
bruising underneath.

6. Abrasion reddish and fresh of 3 x 2 cms., upper middle back of
right shoulder.

7. Abrasion reddish and fresh of 2 x 1.5 cms., upper back of left
shoulder at acromial process region.

and it was opined that they were caused with blunt surface. The
postmortem reports of both the deceased persons have concluded
that death had occurred as a result of asphyxia due to drowning in
shallow beach water.

From their initial investigation, the Goa police found out about
the description of the accused couple and their children. The flat
belonging to the accused persons was sealed under the orders of a
Civil Court. P.W.-38, therefore, applied to the Judicial Magistrate, Ist
Class, Margoa for issuance of search warrant. The Judicial
Magistrate, Ist Class, Margoa directed that the bailiff of the Court
would accompany P.W.-38 and in the presence of two respectable
panchas from the locality, the seal of the court would be opened and
inventory of the movable articles and fixtures found in the flat should
be made. After the search, the flat should be resealed/locked and the
bailiff would file a report to the Court. Accordingly on 17-12-1999,
the police conducted search of the flat of accused, which was located
at Sapna Residency, Colva. During this search, P.W.-38 attached
the passports of the accused-respondents and their two children, two
visiting cards of P.W. 19-Subrato Padhi, a visiting card of Iguana
Restaurant and one laminated photograph. [House Search
Panchnama as Exhibit No. 13 and Report regarding Search Warrant
which was submitted to Judicial Magistrate, Ist Class, Margoa as
Exhibit No. 108]. The Court bailiff, who accompanied with P.W.-38
and other panch witnesses, prepared a list of movable articles of the
flat [Exhibit No. 112]. The flat was resealed after the search was
over.

On 30-01-2000, the accused persons were arrested in Agra by
P.W. 15- Police Inspector Navrang Singh, who was posted at police
station of Sadar Bazar, Agra. P.W.-38 accompanied with Dy.
Superintendent of Police P.W.29-Arvind Gawas, arrived at Agra on
the same day. P.W.-15 informed them that A-1-Sanjay Thakran
handed over a double barrel gun and A-2-Anjali Thakran took out and
handed over a single barrel 12-bore gun from the cupboard. During
the house search of the accused persons, police recovered a
churidhar set, a ladies purse and some newspapers containing
reports that were connected with investigation of the present case.
According to the prosecution story, the recovered materials were
identified by P.W.33-Subhash Nanda, father of Vikas and P.W.5-Kishen Valecha, brother of Priya as belonging to the deceased
couple. P.W.38-Sandesh Chodankar, Sub-Inspector interrogated the
accused persons and satisfied himself of their complicity in the crime.
On 31-01-2000, he further obtained transit remand and custody of the
accused couple. The accused were brought back to Goa on 01-02-2000 and formally arrested in connection with the present case.

On 08-02-2000, as alleged by prosecution, during the
interrogation A-1-Sanjay Thakran disclosed to P.W. 38 Sandesh
Chodankar about the fact that murder of the deceased couple was
committed by his wife and him and that the belongings of the
deceased couple were present in his flat. On 11-02-2000, in
presence of Court bailiff-Peter Fernandes and other panch witnesses,
A-1 handed over jewellery from his flat B-2 F-3 at Sapna Residency,
Colva. The jewellery, which was handed over to police, consisted of
eight yellow metal bangles, one pair of ear-rings and one finger ring.
As has been alleged by the prosecution side, he also produced
clothes such as a white full-sleeves shirt, a saffron-coloured women's
kameez with a cream-coloured salwar, a green-coloured saree with
blouse, a light cream-coloured silken kurta pyjama and a designer
black full-sleeves shirt, which belonged to the deceased couple.

During interrogation, on 13-02-2000, A-2-Anjali Thakran
allegedly disclosed [Exhibit No. 77] that she would point out the
goldsmith to whom she had sold the gold ornaments. As per the
directions of A-2-Anjali Thakran, a police party and panch witnesses
reached the jewellery shop of P.W. 12-Ulhas Lotlikar at Khareband
Margao. P.W.12-Ulhas Lotlikar produced two bangles bearing the
identification mark 'RK 22 KL', weighing 23.5 grams. According to the
prosecution case, the said bangles bearing the identification mark
'RK 22 KL' were gifted to the newly wed couple on their marriage by
P.W.-33. The prosecution has alleged that A-2-Anjali Thakran sold
these bangles along with a necklace and a ring to the jewellery shop
run by P.W.-12. It has also been alleged by the prosecution that A-2-Anjali Thakran sold these jewellery on the pretext that as their
restaurant was not running well, they were in urgent need of money.The learned Sessions Judge, Panaji, as well as the High Court
on evaluation of the circumstantial evidence, came to the conclusion
that the prosecution has failed to prove involvement of accused
respondents in commission of the crime and acquitted them of all
charges.

Admittedly, the case of the prosecution is based on
circumstantial evidence as there is no evidence on record that any of
the witnesses, examined by the prosecution, have seen actual
commission of the crime. Mr. Mahendra Anand, the learned senior
counsel for the appellant(s), to prove the case against A-1-Sanjay
Thakran, has placed reliance on the following circumstances: the
recovery of ladies purse and salwar suit by police at Agra on
30.01.2000 and the recovery of jewellery and clothes made from the
flat of the accused persons in Goa on 11.02.2000 and the evidence of
seen together with the deceased couple before the actual incident by
P.W.30-Suhasini Govekar and evidence of P.W.11-Dinesh Adhikari,
P.W.14-Calvert Gonsalves and P.W.6-Amit Banerjee to the effect that
A-1 was accompanied with the deceased couple on 27.02.1999 and
that the deceased couple was last seen alive in his company. As far
as the evidence against the respondent A-2-Anjali Thakran is
concerned, the learned senior counsel for the appellant(s) has relied
upon the aspect of recovery of ladies purse and salwar suit; the
recovery of two bangles bearing the identification mark 'RK 22 KL' at
her instance from the jewellery shop of P.W.12-Ulhas Lotlikar; and
the evidence of P.W.11- Dinesh Adhikari, P.W.14-Calvert Gonsalves
and P.W.6-Amit Banerjee, that Anjali was last seen in the company of
her husband with the deceased couple before the commission of the
crime.

The learned senior counsel for the appellant(s) has further
submitted that no explanation is forthcoming from the accused
respondents in the statement recorded under Section 313 of the
Code of Criminal Procedure, 1973 (Cr.P.C.) as to what has happened
after they were seen in the company of the deceased couple, would
indicate involvement of accused respondents in commission of the
crime. The learned senior counsel for the appellant(s) has then
pointed out that the chain of circumstances highlighted in the present
case clearly establishes the fact that the accused couple did not only
meet the deceased couple in Goa but they were the ones with whom
the deceased persons were last seen alive. It has also been
contended that the recovery of ladies purse and salwar suit from the
house of accused couple at the time of their arrest in Agra on
30.01.2000; recovery of jewellery and clothes at the instance of A-1-Sanjay Thakran from the flat of accused persons in Goa on 11-02-2000 and recovery of two bangles belonging to D-2-Priya Nanda
bearing the identification mark 'RK 22 KL' at the instance of A-2-Anjali
Thakran from the jewellery shop of P.W.12-Ulhas Lotlikar on 13-02-2000, further substantiate that the accused couple, in order to carve
away the belongings of the newly married couple, committed the
offence of murder. It has also been pointed out that the High Court
and the lower court have erred in (i) rejecting the evidence regarding
the recovery of incriminating materials and (ii) not appreciating the
key prosecution witnesses.

On the other hand, late Shri R.K. Jain, the learned senior
counsel for the respondents, urged that the present matter before us,
is an appeal arising out of special leave petition under Article 136 of
the Constitution against concurrent orders of acquittal by the
Sessions Court and the High Court and, thus, merely because on
reappraisal of the evidence, the other view of the matter than taken
by the courts can be legitimately arrived at, would not be a sufficient
ground to interfere with an order of acquittal, unless this Court
reaches the conclusion that the entire approach of the courts below in
appreciating the evidence was patently illegal, erroneous or unsustainable and that if, on reappraisal of the evidence, only one
view is possible, then alone the Court will exercise the jurisdiction in
appeal and will convict the acquitted accused persons. It is submitted
that on consideration of the evidence on record, the courts below
have rightly reached the conclusion that the prosecution has failed to
prove the case beyond reasonable doubt of involvement of accused
respondents in commission of the crime of murder of the deceased
couple.

The prosecution case is based on the circumstantial evidence
and it is a well-settled proposition of law that when the case rests
upon circumstantial evidence, such evidence must satisfy the
following tests:

(1) The circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established;

(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form
a chain so complete that there is no escape from the
conclusion that within all human probability the crime was
committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of explanation
of any other hypothesis than that of guilt of the accused
and such evidence should not only be consistent with the
guilt of the accused but should be inconsistent with his
innocence.

By a series of decisions, this Court has laid down the
parameters of appreciation of evidence on record and jurisdiction and
limitations of the appellate court, and while dealing with appeal
against order of acquittal this Court observed in Tota Singh and
Another v. State of Punjab, (1987) 2 SCC 529 as under :

"6. The jurisdiction of the appellate court in dealing
with an appeal against an order of acquittal is
circumscribed by the limitation that no interference is to
be made with the order of acquittal unless the approach
made by the lower court to the consideration of the
evidence in the case is vitiated by some manifest illegality
or the conclusion recorded by the court below is such
which could not have been possibly arrived at by any
court acting reasonably and judiciously and is, therefore,
liable to be characterised as perverse. Where two views
are possible on an appraisal of the evidence adduced in
the case and the court below has taken a view which is a
plausible one, the appellate court cannot legally interfere
with an order of acquittal even if it is of the opinion that
the view taken by the court below on its consideration of
the evidence is erroneous."

"7. This Court has repeatedly laid down that the mere
fact that a view other than the one taken by the trial court
can be legitimately arrived at by the appellate court on
reappraisal of the evidence cannot constitute a valid and
sufficient ground to interfere with an order of acquittal
unless it comes to the conclusion that the entire approach
of the trial court in dealing with the evidence was patently
illegal or the conclusions arrived at by it were wholly
untenable. While sitting in judgment over an acquittal the
appellate court is first required to seek an answer to the
question whether the findings of the trial court are
palpably wrong, manifestly erroneous or demonstrably
unsustainable. If the appellate court answers the above
question in the negative the order of acquittal is not to be
disturbed. Conversely, if the appellate court holds, for
reasons to be recorded, that the order of acquittal cannot
at all be sustained in view of any of the above infirmities it
can then - and then only - reappraise the evidence to
arrive at its own conclusions. "

and in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180:

"7. There is no embargo on the appellate court reviewing
the evidence upon which an order of acquittal is based.
Generally, the order of acquittal shall not be interfered
with because the presumption of innocence of the
accused is further strengthened by acquittal. The golden
thread which runs through the web of administration of
justice in criminal cases is that if two views are possible
on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be
adopted. The paramount consideration of the court is to
ensure that miscarriage of justice is prevented. A
miscarriage of justice which may arise from acquittal of
the guilty is no less than from the conviction of an
innocent. In a case where admissible evidence is
ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has
been acquitted, for the purpose of ascertaining as to
whether any of the accused committed any offence or not.
{See Bhagwan Singh v. State of M.P., (2002) 4 SCC
85}. The principle to be followed by appellate court
considering the appeal against the judgment of acquittal
is to interfere only when there are compelling and
substantial reasons for doing so. If the impugned
judgment is clearly unreasonable, it is a compelling
reason for interference. These aspects were highlighted
by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra, (1973) 2 SCC 793, Ramesh Babulal
Doshi v. State of Gujarat, (1996) 9 SCC 225 and
Jaswant Singh v. State of Haryana, (2000) 4 SCC 484."

From the aforesaid decisions, it is apparent that while
exercising the powers in appeal against the order of acquittal the
court of appeal would not ordinarily interfere with the order of
acquittal unless the approach of the lower court is vitiated by some
manifest illegality and the conclusion arrived at would not be arrived
at by any reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are possible,
the court of appeal would not take the view which would upset the
judgment delivered by the court below. However, the appellate court
has a power to review the evidence if it is of the view that the view
arrived at by the court below is perverse and the court has committed
a manifest error of law and ignored the material evidence on record.
A duty is cast upon the appellate court, in such circumstances, to
re-appreciate the evidence to arrive at a just decision on the basis of
material placed on record to find out whether any of the accused is
connected with commission of the crime he is charged with.
In the light of the aforesaid principles laid down, we shall
consider the evidence placed on record to find out whether the courts
below have committed any error in dealing with the evidence, which
can be said to be patently illegal, or that the conclusion arrived at is
wholly untenable, calling for interference by us.

Even before the arrest of the accused couple, the flat of the
accused persons situated at Goa was searched on 17.12.1999 in the
presence of P.W.39-Mariono Pereiera, who was the court bailiff. The
court bailiff accompanied this search party as the flat was sealed
under the orders of the civil court. The Judicial Magistrate, Ist Class,
Margao, had passed an order that the bailiff of the court would
accompany P.W.-38, police officer, and in the presence of two panch
witnesses, the seal of the court on the lock of the flat would be
opened and inventory of movable articles and fixtures found in the flat
should be made.

The Judicial Magistrate, Margao also directed that
after the search, the flat should be re-sealed/locked and the bailiff
would file a report in the court. In his cross-examination, P.W.-39
admitted that the court had asked to prepare a list of all movable
items of the flat and not only valuables, and he committed a mistake
as he did not mention all articles found in the flat in the inventory
and,
therefore, there was no mention of any jewellery in the list prepared
by him. As per this witness, when the search was made on
17.12.1999, there were no gold ornaments in the said flat and that
there were various articles, which appeared like that of gold. A box
full of such articles was kept in the suitcase. According to P.W.1-
Erecko Fernandez, a panch witness, the door of the flat was locked
with three locks and there was also a metal chain around the lock.

The locks were required to be cut with the help of a hacksaw blade.
But since the door also was latched from inside, it could not be
opened. They noticed a small window with a broken glass pane and
one of the police personnel who accompanied them, with the help of
a screw driver, removed the screws of the grill of the window. One of
the police personnel went inside the flat and opened the latch and
thereafter all of them entered into the flat. They noticed some
suitcases in the flat and on opening the same some clothes were
found and jewellery was found inside the cupboard. In his cross-examination, this witness very specifically stated that the said window
was wide enough to allow a person to gain entry in the flat. P.W.38-
Sandesh Chodankar, who led the police party for the search
conducted on 17.12.1999, had found lot of clothes and jewellery of
yellow metal, lot of belongings of shack, electronic items and
household items in the flat. He has explained that he did not attach
any valuable or other articles as he was not sure to whom those
things belonged and also as there was a civil dispute pending in the
court.

The panchnama of the search made on 17.12.1999 (Exhibit
No.13) mentioned that after conducting the search, the door was
closed and one old and two new locks were put on the door and they
were sealed by a one-rupee coin as the court seal was not available.
The court bailiff mentioned that he sealed three locks after the search
was conducted by P.W.-38 on 17.12.1999.

After the arrest of A-1, this flat was once again searched on
11.2.2000 in the presence of another court bailiff Peter Fernandez
and other panch witnesses as A1 allegedly confessed about the
crime on 08.02.2000. According to the prosecution version, he
agreed to handover the incriminating articles to the police. P.W.8-
Sanjay Naik, a witness to the confession of A-1, was also present as
panch witness when A-1 had allegedly handed over jewellery items,
i.e., eight yellow metal bangles, one pair of ear-rings and one finger
ring and clothes such as a white full-sleeves shirt, a saffron-coloured
women's kameez with cream-coloured salwar, a green-coloured
saree with blouses, a light cream-coloured silken kurta pyjama and a
designer black full-sleeves shirt, on the search of the flat of the
accused persons in Goa on 11.02.2000. This witness further said
that the flat was locked and when the bailiff of the court tried to open
the lock after breaking the seal it did not open and the key got
damaged in the process of opening of the lock and the lock was
opened by using a wire. P.W.-38 mentioned that on 11.02.2000 the
flat was found sealed and was opened in the presence of the bailiff
and panch witnesses.

The panchnama of recovery made on
11.02.2000 (Exhibit No.34) mentioned that the bailiff of the court
removed the seals and tried to open the locks with keys. According
to this panchnama, one iron rod was used to open up the locks but
instead of the locks, the latch of the door got broken. When the
chain of latch was removed, it was found that the door was locked
due to body lock. Since the door was locked, the grills of the window
were removed and after removing the broken glasses, one person
was lowered and finally entry was made in the flat. The courts below
have rejected the evidence of recovery made on 11.02.2000 and
they have found that the first list of the articles found in the flat as
prepared on 17.12.1999 did not mention any box or gold-like
materials/artificial jewellery or any other gold article or any clothes
in
the list of movable articles of the flat (Exhibit No.112). How is it
that
the articles were found in the subsequent search from the same flat
which was locked and sealed? The panchnama of the flat searched
on 17.12.1999 though mentioned about three big suitcases full of
clothes and artificial jewellery, no details, whatsoever, regarding
those articles were made and without any reference as to the quality
of golden colour ornaments, P.W.-38 considered them as artificial
jewellery.

On both occasions when the search was made in the flat, it
was not sealed properly with the court seal and, instead thereof, one-
rupee and five-rupee coins were used. The entry in the flat on both
occasions, i.e. on 17.12.1999 and 11.02.2000, was made through the
window which shows that this flat was easily accessible although the
seal of the court was put on it, without interfering with the seal after
removing the grill of the window. There was material contradiction in
the panchnama of flat search made on 11.02.2000 and evidence of
P.W.-8 and P.W.-38 with respect to the way in which the entry was
made to the flat of the accused persons on 11.02.2000. When at the
first instance no jewellery was found inside the flat, how it was
recovered on the subsequent search? The search and recovery of
articles by the police on 11.02.2000 does not inspire confidence as
the flat was easily accessible, without disturbing the lock and planting
of the articles by the police cannot totally be ruled out. We have
carefully gone through the evidence of the witnesses and the
panchnamas and list of seized articles and have found that reasoning
adopted by the courts below in discarding the evidence of seizure of
articles from the flat of the accused persons cannot be said to be
without any basis.

On the information received by the police, the accused persons
were arrested at Agra and at the time of arrest on 30.01.2000, as per
the prosecution, certain incriminating articles were seized from the
accused couple at Agra. The police recovered the ladies purse and
salwar suit from A-2-Anjali Thakran. These articles were put for Test
Identification which was conducted in the presence of P.W.24-
Vinayak S.N. Alornekar, Special Judicial Magistrate on 10.02.2000.
During this T.I. Parade, P.W.5-Kishen Valecha, brother of deceased
Priya Nanda, was unable to identify the salwar suit, but he had
identified the ladies purse belonged to his sister and the reason given
for identifying it was that she was carrying the same purse while
leaving for Vaishnodevi after marriage. Another witness P.W.33-
Subhash Nanda, identified both purse and salwar kameez as
belonging to his daughter-in-law, Priya Nanda. In his cross-
examination, P.W.-33 has mentioned that he identified the salwar
kameez only from the colour and design and not from any other
identification mark. He has admitted that same salwar suit and purse
are available in the market. P.W.-5 has also admitted in his cross-examination that there was no distinctive mark on the purse.

Identification of these articles have been disbelieved by the courts
below and, in our opinion, rightly so. When the persons identified it,
they did not have sufficient opportunity to see these articles used by
the deceased for a long duration, and when the articles do not carry
any distinctive marks, on the basis of which the articles can be
distinguished from the similar articles which are easily accessible and
available in the market, identification of the articles by the witnesses
would be difficult to be believed. The recovery of these articles from
the accused in the absence of their identification as belonging to the
deceased, does not take the prosecution case any further.

The learned senior counsel for the appellant(s) Mr. Mahendra
Anand has placed reliance on the recovery of two bangles which
had the identification mark 'RK 22 KL', weighing approximately
23.5. grams, from the shop of P.W.12-Ulhas Lotlikar at the instance
of A-2. On 13.02.2000, during interrogation she disclosed that she
would point out the goldsmith to whom the gold ornaments were sold.
Accordingly, as per her directions, police party and panch witnesses
approached the jewellery shop of P.W.-12 at Khareband, Margao.

In
presence of panchas, P.W.-12 produced the two bangles bearing
identification mark 'RK 22 KL' , weighing 23.5. grams, before the
police party. As per this witness, the accused came to his shop and
sold two bangles, a necklace and a gold finger ring. When he asked
for the reason as to why she was selling these ornaments, A-2 told
him that their restaurant was not running well and hence, they were in
urgent need of money. He paid Rs.12,400/-, Rs. 3,200/- and
Rs.1,200/- respectively, for two bangles, a necklace and a gold finger
ring. He did not melt the bangles since they were in good condition.
As per the prosecution, these gold ornaments belonged to deceased
Priya Nanda. During cross-examination, P.W.-12 volunteered to
produce the book where he maintained the record of sale of these
ornaments. However, inspite of ample opportunity given to him to
produce the book, he did not do so. In his cross-examination, he
admitted that a day before recovery, A-2 was shown to him in the
office of Dy. Superintendent of Police, Mapusa. That apart, the police
had not recovered the other ornaments alleged to have been sold by
the accused to P.W.-12 as it is said that he had melted those
ornaments. It is highly improbable that P.W.-12 would have retained
the bangles, which have the distinctive mark over them and would
have melted other ornaments with no distinctive marks on them. The
whole purpose and authenticity of the recovery of these ornaments
have been lost when the witness has admitted that a day ahead of
the recovery the accused was shown to him in the police station.

Another piece of evidence, on which the prosecution strongly
relied, is of identification of the accused persons in the Test
Identification parade on 07.02.2000. P.W.24-VSN Alornekar, Special
Judicial Magistrate, Tiswadi and Bardez Talukas, conducted Test
Identification parade, wherein P.W.6-Amit Banerjee, P.W.30-Suhasini
Govekar and P.W.7- Ganpat , were the identifying witnesses. P.W.-6 had identified both the accused persons as the persons who came
with D-2 Priya Nanda to Hotel Seema on the night of 27.02.1999.

The trial court as well as the High Court have found certain
irregularities in the manner of conducting the identification parade. A-1 and A-2 were placed in the same identification parade with 6
dummies each, which was contrary to Paragraph 16(2)(h) of the
Criminal Manual issued by the High Court of Bombay, which
mentioned that :

"if two suspects were not similar in appearance or where there
were more than two suspects, separate parade should be held
using different person on each parade."

We have gone through the original record of the memorandum of
identification parade (Exhibit No.70) and have found that P.W.-24 has
mentioned as follows in this memorandum :

"The dummy accused who are put in the parade I.e., 6 ladies
and 6 gents are more or less of the same features and age
groups as that of the accused couple to be put in the parade.
They are also more or less the same height and status in
appearance as that of the accused."

As far as case of A-1 is concerned, who was around 38 years old at
that time, 5 of the dummy persons belonged to age-group of 23-27
and another dummy was of 40 years old. Hence, there is a serious
doubt regarding the fairness of the test identification.

We have now to consider the veracity and authenticity of the
evidence led by the prosecution to show that the accused persons
were seen with the deceased couple in Goa moving around together
and that they were the same persons who had been last seen
together by the witnesses with the deceased couple, and if so, what
shall be the resultant inference which can be drawn from the facts
proved in the surrounding circumstances.

P.W.-30 was examined to prove the acquaintance of the
accused persons with the deceased couple prior to the date of
incident. As per P.W.-30, on 26.02.1999 the accused couple and
their children came to her shack which was located at Anjuna Beach.
A-1 approached P.W.-30 and told her that she was looking pretty and
that he would give her work and would take her on ship and would
give her whatever she wanted. He had also made enquiries whether
the ornaments which she was wearing were real or artificial and that
what was her bank balance. On 27.02.1999, the accused couple and
their children came to her shack between 1 and 2 p.m. and went to
take bath on the beach. When they returned from the beach, they
were accompanied by a newly married couple. P.W.-30 had a talk
with D-2-Priya Nanda, who was wearing the reddish-coloured
bangles and, accordingly, she assumed that they were newly married
couple. The newly married lady, who had come with the accused
lady, changed her clothes and wore a blue-coloured skirt and blouse.
After having lunch at her shack, the two couples and the children
went away. About a month later, the police showed her two or three
photographs and asked her to identify the persons in the
photographs. She identified D-1-Vikas Nanda and D-2-Priya Nanda,
as the newly married couple, who had come to her shack on
27.02.1999 along with the accused couple. She also identified
articles, blue skirt and blouse, to be belongings of deceased Priya
Nanda. The evidence of this witness of remembering the persons
after a month when no particular incident was mentioned by her for
remembering them, after a lapse of time, appears to be unnatural,
particularly so, when she was running a shack at a beach where
hundreds of persons were visiting. The evidence of this witness of
the accused approaching her and making enquiries about the value
of the ornaments and her bank balance in the first meeting, does not
inspire confidence. Apart from this, the witness has failed to identify
any of the accused persons in the identification parade conducted on
07.02.2000. That apart, in the cross-examination, this witness said
that the children accompanying the accused were in the age group of
20-21 years whereas it has come in evidence that children of the
accused couple were a boy and a girl, aged about 12 years and 6
years respectively.

The prosecution examined P.W.14-Calvert Gonsalves to prove
that he had seen the deceased couple and accused couple at Iguana
Miraj Restaurant. As per this witness, he used to meet the accused
persons at Iguana Restaurant as also at Lalita Beach Resort. The
accused's children were a boy and a girl. The boy was about 12
years of age and the girl was about 6 years of age. He was
introduced by A-1 to one Vikas Nanda (D-1) on the evening of
27.02.1999, while D-1 was sitting beside A-1 outside Iguana
Restaurant. He was also told by A-1 that D-1 was his friend from
Delhi and had come to Goa for his honeymoon. It was also informed
to him by A-1 that the wife of D-1 was inside Iguana Restaurant. The
witness deposed that there was one AC room in the Restaurant
containing bedroom, TV, etc. which was used by A-1. D-1 told him
that his wife was in the AC room alongwith A-2. The name of the wife
of D-1 was told to him as Priya. D-1 told him that his wife was in the
company of A-2. D-1, A-1 and he talked for about one-and-a-half
hours. After that, A-1 told him that he and D-1 were going to disco
and he left for his home. The time was at about 9.30 p.m. From the
statement of this witness, it is apparent that at the night of
27.02.1999, he himself had not seen A-2 and D-2 sitting in the room
at Iguana Restaurant. This witness further proved the fact that till
9.30 p.m. on 27.02.1999, A-1 was seen in the company of D-1 when
he left them at Iguana Restaurant.

P.W.11-Dinesh Adhikari, who was working as a domestic help
in the bar and restaurant of Iguana Miraj and Lalita Beach Resort,
deposed that the accused were running a hotel at Sernabhati Colva
known as Iguana Miraj which was a bar and restaurant and they were
also running a hotel besides the said restaurant and the name of that
hotel was Lalita Beach Resort. He knew the accused persons right
from the days he used to work for them in Haryana (Gurgaon) and
thereafter he joined them in Goa. Some time in June 1999, the police
had shown the photograph of a lady and a gent and asked him
whether he could identify anyone of them. He told the police that he
could identify the persons in the photograph. He identified the
persons from the photographs and said that he had seen those
persons 2 to 3 days prior to Holi of the year 1999 in the hotel of the
accused. They came to the hotel at about 6.00 to 7.00 p.m. He saw
that A-1, the gentleman in the photograph, and one person named
Calvert were sitting outside the hotel while A-2 and the lady in the
photograph were sitting inside the hotel. He was asked to bring a
bag from a white colour Maruti car when they had come to the hotel
in the evening. After some time, A-1 and the man from the
photograph started walking in the direction of the beach and after
about 30 to 45 minutes he saw A-1 alone while A-2 was sitting with
the lady in the photograph. He further deposed that although he did
not enter the room but he saw A-2 and D-2 sitting in the bedroom
through the glass fixed to the bedroom door. In his cross-examination, this witness deposed that the beach is at a distance of
about 200 to 300 metres from Iguana Miraj Hotel. A-1 and D-1 went
to the beach at around 9.30 to 10.00 p.m. and thereafter he went to
his living quarter. When he came back, he saw only A-1 in the hotel.
He was not sure at what time the accused couple left with the lady in
the photograph from Iquana Miraj Hotel. From the statement of this
witness, it is apparent that A-2 and D-2 were sitting in the hotel room
and it was only A-1 and D-1 who left towards the beach and after 30
to 45 minutes only A-1 returned and thereafter A-1 and A-2 along with
D-2 left the hotel.

P.W.6-Amit Banerjee, who was working as the Receptionist of
Hotel Seema where the deceased couple stayed when they came to
Goa, deposed that on 26.02.1999, D-1 and his wife D-2 had come to
the hotel. They were provided a room which was reserved for the
Union Bank of India as its holiday home. Mr. A.C. Duggal, General
Manager of the Union Bank of India had informed him on phone that
these guests were coming to the hotel and he should take care of
them. On 27.02.1999 at about 2330 hours, D-2 came alone and
asked for the room key and told him that she was checking out of the
hotel. D-1-Vikas Nanda, the husband of D-2-Priya Nanda, was not
along with her. He asked her why she was checking out at that odd
time. At that, she informed that she had met some friends from Delhi
and that she was going to join them. D-2 went to her room and he
went to the reception area where the security guard was on duty. He
asked the security guard as to how she had come to the hotel. The
guard informed him that the guest had come in a car along with a
man who had followed her to the room. He had noticed a white
colour 800CC Maruti car parked outside the gate of the hotel and one
lady with short hair was sitting on the rear seat. He noticed her for a
minute or two. D-2 returned to the reception from her room within 15
minutes and A-1 was carrying the luggage. She settled the bill and
thereafter left the hotel. In his cross-examination, this witness
mentioned that when at reception counter D-2 was making the
payment, he saw A-1 who passed along with the luggage putting his
head down.

In the Test Identification Parade on 07.02.2000, this
witness identified A-1 as the person who came along with D-2 on
27.02.1999 when she checked out of the hotel and identified A-2 as
the same lady who was sitting in the Maruti car on 27.02.1999. He
stated that he did not find anything abnormal about the departure of
D-2 and behaviour of D-2 at that time was normal. From the
statement of this witness, it appears that he had merely a fleeting
glance of A-2 sitting in the parked car and thus he had described her
as the lady with a short hair. Although in the test identification
parade
conducted after more than 11 months he identified both the accused,
but when the police recorded his statement on 07.03.1999 in Hotel
Seema he had not given the description of the accused persons to
the police to be the persons who came to his hotel along with D-2.
The witness admitted that in the hotel register the check-out timing
column was blank. Therefore, the record produced does not indicate
the timing of departure of D-2 from Hotel Seema. The prosecution
has also not examined the guard of the hotel to identify A-2 to be the
person who was sitting in the car.

Before we analyse the evidence of P.W.11-Dinesh Adhikari,
who was working as a domestic help in the bar and restaurant
Iguana Miraj, P.W.14-Calvert Gonsalves, who was said to be in the
company of A-1 and D-1 on the evening of 27.02.1999 outside the
lounge of the restaurant and P.W.6-Amit Banerjee, who was working
as Receptionist of Hotel Seema, we would refer to certain decisions
of this Court on the point of `last seen together'. It is a settled rule
of
criminal jurisprudence that suspicion, however grave, cannot be
substituted for a proof and the courts shall take utmost precaution in
finding an accused guilty only on the basis of circumstantial evidence.
This Court has applied the above-mentioned general principle with
reference to the principle of last seen together in Bodh Raj alias
Bodha & Ors. v. State of Jammu and Kashmir, (2002) 8 SCC 45
as under:

"31. The last-seen theory comes into play where the
time-gap between the point of time when the accused and
the deceased were seen last alive and when the
deceased is found dead is so small that possibility of any
person other than the accused being the author of the
crime becomes impossible. It would be difficult in some
cases to positively establish that the deceased was last
seen with the accused when there is a long gap and
possibility of other persons coming in between exists. In
the absence of any other positive evidence to conclude
that the accused and the deceased were last seen
together, it would be hazardous to come to a conclusion
of guilt in those cases. .."

[See also : State of U.P. v. Satish, JT 2005(2) SC 153 = (2005) 3
SCC 114 (para 22) and Ramreddy Rajeshkhanna Reddy & Anr. v.
State of Andhra Pradesh, JT 2006 (4) SC 16 (para 29)].In Ramreddy Rajeshkhanna Reddy (supra), this Court further
opined that even in the cases where time gap between the point of
time when the accused and the deceased were last seen alive and
when the deceased was found dead is too small that possibility of any
person other than the accused being the author of the crime becomes
impossible, the courts should look for some corroboration.

In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438, it was
observed that:
"5. In the absence of any other links in the chain of
circumstantial evidence, it is not possible to convict the
appellant solely on the basis of the 'last-seen' evidence,
even if the version of PW 14 in this regard is
believed. .."

From the principle laid down by this Court, the circumstance of
last-seen together would normally be taken into consideration for
finding the accused guilty of the offence charged with when it is
established by the prosecution that the time gap between the point of
time when the accused and the deceased were found together alive
and when the deceased was found dead is so small that possibility of
any other person being with the deceased could completely be ruled
out.

The time gap between the accused persons seen in the
company of the deceased and the detection of the crime would be a
material consideration for appreciation of the evidence and placing
reliance on it as a circumstance against the accused. But, in all
cases, it cannot be said that the evidence of last seen together is to
be rejected merely because the time gap between the accused
persons and the deceased last seen together and the crime coming
to light is after a considerable long duration.

There can be no fixed or
straight jacket formula for the duration of time gap in this regard and
it
would depend upon the evidence led by the prosecution to remove
the possibility of any other person meeting the deceased in the
intervening period, that is to say, if the prosecution is able to lead
such an evidence that likelihood of any person other than the
accused, being the author the crime, becomes impossible, then the
evidence of circumstance of last seen together, although there is long
duration of time, can be considered as one of the circumstances in
the chain of circumstances to prove the guilt against such accused
persons. Hence, if the prosecution proves that in the light of the facts
and circumstances of the case, there was no possibility of any other
person meeting or approaching the deceased at the place of incident
or before the commission of the crime, in the intervening period, the
proof of last seen together would be relevant evidence. For instance,
if it can be demonstrated by showing that the accused persons were
in exclusive possession of the place where the incident occurred or
where they were last seen together with the deceased, and there was
no possibility of any intrusion to that place by any third party, then a
relatively wider time gap would not affect the prosecution case.

We will first consider the applicability of the last seen together
doctrine with respect to the murder of D-1-Vikas Nanda. According to
P.W.14-Calvert Gonsalves, A-1 and D-1 were present outside the
Hotel Iguana Miraj at around 9.30 p.m. and as told to him by D-1, A-2
and D-2 were sitting inside one of the rooms of the hotel. P.W.11-
Dinesh Adhikari has also stated that after serving drinks to A-1, P.W.-14 and D-1, he went away. He returned to the hotel at around 9.00-9.30 p.m. and found that only A-1 and D-1 were sitting outside the
hotel and P.W.-14 had gone away. He has also mentioned that A-2
and D-2 were sitting inside a room of the hotel. According to P.W.-11, A-1 and D-1 started walking towards the beach after some time
when he saw them sitting together at around 9.00-9.30 p.m.

After
about 30 to 45 minutes, he saw A-1 alone in the hotel. According to
the prosecution version, A-1 murdered D-1 by drowning him in the
shallow beach water. However, it is highly improbable that A-1, who
at the relevant time was in his late 30s, was able to overpower D-1
who was not only well-built but also about 10 years younger and taller
than him. We have also noticed that when the dead body of D-1 was
recovered, it had no clothes except an undergarment. It is highly
unlikely that a single person not only forcefully drowned the deceased
D-1 in the shallow beach water but also forced him to take out all the
clothes and ornaments which he was wearing at that time. The post-mortem report also does not mention any serious injury on any of the
vital parts of D-1 to support the prosecution version. It is clear from
the deposition of P.W.-11 that A-1 went along with D-1. P.W.-14 has
also stated that A-2 and D-2 were sitting inside a room of the hotel.

From this evidence, it is clear that A-2 had no role whatsoever to play
with reference to the murder of D-1-Vikas Nanda, especially when the
prosecution has not been able to produce any material or evidence to
establish the fact that they either pre-planned a plot or conspired with
each other to murder the deceased couple to carve away their
valuable materials. We have also not found any other link in the
chain of circumstances to conclusively establish that A-1 murdered
D-1 or A-2 played any role in assisting him to murder D-1. Even if we
believe the evidence of P.W.-11 that he saw D-1 in the company of A-1 walking towards the beach and thereafter saw A-1 returning alone
after 30 to 45 minutes, there has been a time gap of about 2 < hours
when A-1 and D-1 were last seen together and when the dead body
of D-1 was found at around 00.30 a.m. at the Benaulim Beach. No
evidence was led by the prosecution to prove the fact that there was
no possibility of any other person approaching D-1 on the beach
which is a public place, during the intervening period when A-1 was
last seen with the deceased and when the crime was detected.

We shall now weigh the last seen doctrine with respect to D-2-
Priya Nanda. According to P.W.-11, after about 30 to 45 minutes
when he saw A-1 and D-1 walking towards the beach, he had seen
A-1 alone while A-2 was sitting with D-2 in the hotel. After some time,
he saw the accused persons and D-2 walking away from Iguana Miraj
Hotel. We can safely assume that P.W.-11 saw both the accused
persons along with D-2 latest by around 10.30 -11.00 p.m. P.W.-6
Amit Banerjee had only a momentary glance of the lady sitting in the
Maruti car who, according to the prosecution, came to Hotel Seema
on 27.02.1999 with D-2 with a male person allegedly A-1. P.W.-6 has
mentioned that the guard of the hotel had an opportunity to see the
persons who came along with D-2. However, the prosecution chose
not to examine the guard to identify either A-1 or A-2. It is difficult
to
believe P.W.-6 that he had seen A-2 sitting in the car when he had
got an opportunity to look at her for merely one to two minutes. In
his statement, he has described her as a lady with short hair. He has
not given any description indicating that he had seen somebody
sitting in the car whose face was visible from one side. Even when
he was examined by the police, he had not described the features of
A-2. In the absence of any other supporting material on record, it will
not be possible to believe the statement of P.W.-6 that he had seen
A-2 sitting in the car on the night of 27.02.1999 to establish the fact
that when D-2 left the hotel she accompanied A-2.

Similarly, with
respect to A-1, P.W.-6 who had an opportunity to see A-1 for the first
time for a very short duration to recognize him to be a person who
accompanied D-2 to Hotel Seema on the night of 27.2.1999, he had
only a fleeting glance of male person who came with D-2 as he was
busy in settling the account with her. That apart, the dead body of
D-2 was found at around 7.30 a.m. on 28.02.1999 at Vagator Beach,
around 60 kms. from the beach where the dead body of D-1 was
recovered and quite a long distance from Hotel Seema. Hence, there
has been a considerable time gap of approximately 8 = hours when
D-2 was last seen alive with the accused couple.

There being a
considerable time gap between the persons seen together and the
proximate time of crime, the circumstance of last seen together, even
if proved, cannot clinchingly fasten the guilt on the accused.
It is urged by Mr. Mahendra Anand, the learned senior counsel
for the appellant(s), that the accused have not explained as to in what
circumstances the victims suffered the death in their statements
under Section 313 Cr.P.C. and thus would be held to be liable for
homicide.

The learned senior counsel for the appellant(s) placed
reliance on the following observations of this Court made in Amit
alias Ammu v. State of Maharashtra (2003) 8 SCC 93 :
"9. The learned counsel for the appellant has placed
reliance on the decision of this Court by a Bench of which
one of us (Justice Brijesh Kumar) was a member in
Mohibur Rahman v. State of Assam, (2002) 6 SCC 715
for the proposition that the circumstance of last seen does
not by itself necessarily lead to the inference that it was
the accused who committed the crime. It depends upon
the facts of each case. In the decision relied upon it has
been observed that there may be cases where, on
account of close proximity of place and time the factum of
death, a rational mind may be persuaded to reach an
irresistible conclusion that either the accused should
explain how and in what circumstances the victim
suffered the death or should own the liability for the
homicide. The present is a case to which the observation
as aforesaid and the principle laid squarely applies and
the circumstances of the case cast a heavy responsibility
on the appellant to explain and in absence thereof suffer
the conviction.

Those circumstances have already been
noticed, in which case such an irresistible conclusion can
be reached will depend on the facts of each case. Here it
has been established that the death took place on 28th
March between 3 and 4 p.m. It is just about that much
time that the appellant and the deceased were last seen
by PW 1 and PW 11. No explanation has been offered in
the statement by the appellant recorded under Section
313 Cr.PC. His defence is of complete denial. In our view,
the conviction for offence under Sections 302 and 376
has been rightly recorded by the Court of Session and
affirmed by the High Court."

We have noticed the decision.
However, the circumstances in the present case are not similar to the
case where the event of the last seen together has very close proximity
with the time and place of the commission of the crime and other
circumstances also favour the hypothesis of guilt and consequently the
fact that no explanation or false explanation offered by the accused was
taken as a link in the chain of circumstances. [See also : Birbal v.
State of M.P., (2000) 10 SCC 212; Raju v. State of Haryana, (2001) 9 SCC
50; and Babu S/o Raveendran v. Babu S/o Bahuleyan and Another (2003) 7
SCC 37]. Thus, in the circumstances of the case, the accused persons not
giving any explanation in their examination under Section 313, Cr.P.C.
could not be taken to be a circumstance pointing towards irresistible
conclusion that they are involved in the commission of the crime.

In the light of the factors that
evidence regarding the recovery of the incriminating materials from the
accused persons has been discarded; that there has been sufficient time
gap between the instances when the accused persons were last seen
together with the deceased persons; and in the absence of any other
corroborative piece of evidence to complete the chain of circumstances
to fasten the guilt on the accused couple, we are of the opinion that
the accused have been rightly given the benefit of doubt by the courts
below. We have found that the finding of the High Court that the chain
of circumstances is not complete to conclusively establish that either
A-1 or A-2 alone or with the common intention of each other have
committed the dreadful crime of murder of newly married couple, is
correct and merely suspicion, however grave, cannot replace the weight
attached to the evidence. Accordingly, we order for dismissal of the
appeals.